Supporters of school vouchers sue to block ballot measure

Paid circulators, wording crux of argument

Claudia Gamez of Phoenix expresses her displeasure Tuesday, Aug. 8, at the initiative drive to kill expansion of the voucher program. Gamez said she had hoped to move her four children from a public school to a Catholic school but can afford to do so only if there are vouchers. (Howard Fischer/ Capitol Media Services)

PHOENIX — Supporters of universal vouchers filed suit Friday in a bid to keep a referendum on the legislation from ever getting to the ballot.

The lawsuit filed in Maricopa County Superior Court contends that some of the people who circulated petitions to force a public vote did not comply with state elections law. That includes whether they registered as paid circulators and whether they were felons who are not permitted to circulate petitions.

If a judge agrees, that could disqualify all the signatures they gathered.

Whether that would be enough to quash the referendum depends on how many valid names remain. Backers turned in more than 111,000 on Tuesday; they need 75,321 of these to be found valid to give voters the last word on legislation to allow any student to get a voucher of state tax dollars to attend private or parochial schools.

But voucher supporters already are working on a backup plan that, if successful, would void all of the signatures and make the referendum drive disappear.

In a letter Friday to state Elections Director Eric Spencer, attorneys Thomas Basile and Tim La Sota, who represent interests who want to expand the voucher program, contend all petitions are invalid because they said the law they seek to refer to voters was enacted the “fifty-third session of the legislature.” But technically speaking, SB 1431 was approved during “first regular session of the fifty-third legislature,” with each “legislature” taking up two years.

There will be two regular sessions of the fifty-third legislature — 2017 and 2018 — as well as the possibility of one or more special sessions of this legislature.

La Sota, whose clients include the pro-voucher American Federation for Children, said this isn’t a question of whether the people who signed the petition by Save Our Schools were confused by that language. He said the law clearly requires petitions to refer legislation to the ballot to identify in which legislative session it was approved.

“It’s no more than a reality than is a unicorn,” La Sota said. And he said that entitles Spencer to use his authority to invalidate all the petitions based on that error.

Spencer said late Friday he is reviewing that request.

He said that, based on his preliminary review, he will not kill the referendum.

He said, though, that does not preclude La Sota from raising the same issue with a trial judge.

The legal maneuvers come amid questions of whether voters support what the lawmakers enacted.

Until now vouchers, formally known as Empowerment Scholarship Accounts, have been limited to those in special circumstances, like having a disability or attending a school rated D or F. About 3,500 student now get vouchers out of approximately 1.1 million children in Arizona public schools.

SB 1431 removes all those preconditions, though supporters had to agree to a cap of 30,000 by 2023 to get the votes, though that is something that can be removed by future lawmakers at any time.

The referendum, if it gets to the ballot, would prevent the law from taking effect until the November 2018 general election. It would then be up to voters to decide whether to approve of the new law or veto it.

Supporters have defended the expansion even though the vouchers would be available to families who already can afford to send their children to private schools. And even Gov. Doug Ducey said this past week he wants the program even if it would mean the use of tax dollars for children to get a religious education.

Whether that would survive public scrutiny remains to be seen.

Foes of an expanded program do have something else going for them.

In general, when voters are confused or unsure, they tend to vote “no” on ballot measures. And a “no” vote on this referendum is a vote to veto what the Legislature approved and Ducey signed.

There was no immediate response from the attorney who has been representing Save Our Schools.

The wording difference in what legislative session resulted in SB 1431 could prove crucial if that issue ends up in court.

Arizona judges have said that referendum petitions have to be in “strict compliance” with election laws. That because they allow a minority of voters — equivalent to 5 percent of the turnout in the last gubernatorial election — to hold up something approved by a majority of the Legislature.

By contrast, courts until now have used a “substantial compliance” standard for initiatives where voters are proposing their own new laws or constitutional amendments. Aside from the fact that these require more signatures, an initiative changes nothing unless and until voters approve.

The Legislature earlier this year voted to require courts to use “strict compliance” for future initiatives. That law took effect this past week when a judge threw out a legal challenge to the change.

But Maricopa County Superior Court Judge Sherry Stephens said she was not ruling on the constitutionality of the new standard. Instead, she said the lawsuit will not be “ripe” for court action until there is an actual initiative being challenged.